The European Convention on Human Rights (ECHR) was agreed in the aftermath of the Second World War. British lawyers played an instrumental role in the development of the Convention, and the UK signed up in 1951 . In the UK the current situation is different, UK adopts an unwritten constitution whereby the state can takeaway individual rights at any time because they are not protected by the constitution, hence why they now have the ECHR which does provide superior protection of certain rights. The substantive rights from ECHR established by HRA are set out in Section 1.
Section 1 of the ECHR outlines the different rights and freedoms in which the high contracting parties are obligated to grant everyone within their jurisdiction . These articles are adopted and given effect by the HRA through Article 2 to 12 and 14 of the convention as well as the first 3 articles of the first protocols and article 1 of the thirteen protocols, indeed all have been established in full of the 1st schedule of the Act . Individual’s conventional rights which have been breached can only be handled at first through the European Court of Human Rights (ECtHR) after going through the possible remedies in the UK. The HRA makes sure now that the conventional breach is dealt in all domestic courts of the UK, also interpreting the rights of the convention, section 2(a) of the HRA enforces a general duty to ‘take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights’ . Having noted that the ECtHR is not bound by its previous decisions. The words ‘take into account’ suggests that the European case law is not binding on the court considering it , however it can play a convincing role when construing a decision.
Under the HRA the first issue to look at is whether the legislation followed by the authorities, can be given into effect, in a way which is compatible, ‘so far as it is possible to do so’ with Yusaf Smith/SISIS Conventional rights. This section is the lynchpin of the HRA , as Lord Nicholls stated in the case of Ghaidan v Godin-Mendoza “It is one of the primary means by which Convention rights are brought into the law of this country” . This means that there is a universal requirement that all acts of parliament essentially need to compatible with individual’s conventional rights. However, if compatibility has not reached, under section 4 HRA the courts (High court, Court of Appeal and Supreme Court) can make a ‘declaration of incompatibility’ whereby the courts think that the legislation is incompatible with human rights. Section 4(6) states that it ‘does not affect the validity, continuing operation or enforcement of the provision’. This means that the bill will not change straight away from the declaration of incompatibly, in its place parliament has to decide whether the bill in question should be amended so that it is compatible with human rights. This then activates the power of the minister, which allows to formally make a remedial order , so that there is no later infringement with the conventional rights. An example of this is shown in the case of R(H) v MHRT North and East London Region . Because of this parliament then altered the validity of this act and it was the first use of the remedial order. However, it is still not clear that this will provide Yusaf/SISIS with correect redress.
Furthermore, Yusaf/SISIS can question the acts of public bodies. HRA section 6 provides ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right’ . In certain circumstances a public body may only do as long as its requested by primary legislation. There are two types of public bodies in relation to this particular section as there is no concrete definition labelled in the act, such as a ‘pure’ body which requires the institution/authority to fully comply in all they do with the conventional rights and second a ‘public’ body, under this obligation the institution/authority is also required to comply with the ECHR when they are exercising ‘public functions of a public nature’ but not however doing an act which is of private nature (section6(5)). In any circumstances this sections clearly states that courts and tribunals are public bodies which create an indirect horizontal effect . The issue to look is whether Bruddersfield police is a public body. In sections 6(3) (a&b) it states a public body includes a court or a tribunal and those (person or body) exercising functions of a public nature, nevertheless this ultimately excludes both houses of Parliament and those in connections with parliament. This decision strongly upholds parliamentary sovereignty whereby it is only up to parliament to amend and appeal legislation as Parliament alone is the supreme law-making body in the UK.
As we now know Bruddersfield police is a public body as they are carrying out a public service to ensure that citizens are well protected and their human rights are well respected and secured. The courts have found in a number of cases that if a functional falls under the category of ‘governmental’ then the claim is likely to be seen as actionable. As seen in the case of Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another which was one of the very first cases to concern public bodies. Lord Nicholls stated “The phrase ‘a public authority’ in section 6(1) is essentially a reference to a body whose nature is governmental in a broad sense of that expression … The most obvious examples are government departments, local authorities, police and armed forces” . The conventional rights relevant to Yusaf/SISIS are those contained (8,9,10,11 discussed later).
Moreover, if victimized under the HRA section 7 it states ‘A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may bring proceedings against a public authority… or can rely on the convention’ . Section 7 defines further on what a ‘victim’ is as ‘a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights’ . This will not be difficult to establish for Yusaf/SISIS as they both are evidently affected. Yusaf/SISIS may rely on the conventional rights in certain number of ways in regards to take legal proceedings. The victim may bring proceedings if a conventional right has been breached in the ‘appropriate court or tribunal’ (section7(1)(a)) as well as utilizing this as a defense mechanism , as certain number of conventional articles have been breached (arts.8,9,10,11), this route can be deemed suitable for Yusaf/SISIS. An example can be seen in the case of Somerville v Scottish Ministers whereby conventional rights were breached and brought in for a cause of action. Moving on towards Yusaf/SISIS conventional rights, articles concerned have been violated and discussed now.
The first of many conventional articles which have been breached is Article 8. This article guarantees and respects the right to his ‘private and family life, his home and correspondent, as well as assuring that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society…’ . The issue which raised concerns the fact, Bruddersfield Police acted unlawfully in tapping Yusaf Smith phone (section6 HRA), An action against unlawful decisions can rely only on public bodies, as we previously have outlined for the purposes of section 6 HRA Bruddersfield police is truly a public body and so this is likely to be seen as ‘governmental’ (Lord Nicholls) so a claim can be actionable in this sense, for example having the discretion to exercise bullying powers against any individual can be considered as a public body . The primary obligation for the state is to ensure that the acts of public bodies are refrained from interfering with the Article and also to apply promising factors such as protecting the extreme breaches of the right itself . Nevertheless, Yusaf strongly believes his phone was tapped over the past few weeks by the police which constitutes that there has been an ‘interference by a public body’. Article 8 is a right which is qualified that allows the state to interfere on the basis of satisfying conditions and justification, any type of interference must be ‘in accordance with the law’ .
An example of this is shown in the case of Malone v UK whereby the courts held that there was no right to privacy of UK Law. However, a slightly different decision was reached on the appeal to EctHR where they held that the telephone tapping was in breach of Malone article 8 conventional right, as It was ‘not in accordance with the law’ the UK government acted upon this decision and then introduced a statute which protected telephone tapings, Interceptions of Communications act 1985 . This decision solidifies Yusaf breach claim as he can bring proceedings against a public authority (s7 HRA), also it makes Yusaf an easy target because he is the president of the SISIS organisation. Bruddersfield police will want to be listening to all of his private calls as well as collecting private and important information in regards to the protest (discussed later).
A further point that Yusaf can argue is the recording and use of CCTV footage (which interrelates with article 9 freedom of religion). There could be a breach of physical and psychological integrity . Generally, recording in a public space will not breach article 8, however this will only be labelled as actionable if the person movements are recorded . SISIS members will be protesting against the issues raised by the Government, so inevitably movement will be used such as a marching, waving signs etc. There could be an issue where footage has been leaked to the media to make SISIS look vulnerable, damage their character and reputation. Peck v UK applied . Once a recording has been made and then distributed, this will then enforce article 8. Also the police cannot keep the evidence forever (S and Marper ). Nevertheless, the police can interfere with this rights on the grounds of legitimate aims, necessary and proportionate. Officers will be deeply concerned with demonstrator’s and marcher’s behaviour with others as this might breach serious disruption of life of the community because of the small group which supports the restriction, (discussed later art11) thus the point raised about CCTV are invalid.
The next right to examine is Article 9. As mention above this relates to ‘freedom of religion which is also a qualified right, ‘the decisions made by Chief Constable on those preventing those from wearing clothing which conceals their identity for religious reasons or otherwise could possibly be a violation. ‘Everyone has the right to freedom of thought, conscience and religion, and also freedom to manifest one’s religion’ . The issue to consider is whether manifesting one’s religion can be enforceable in a public place rather than an institution. The decisions in the case of Sahin v Turkey expressed the view that wearing headscarves in a University was not permissible because she complied with university rules and that religion should not be a part of government, education and other political parts of society. This is the form of secularism . However, a slightly different case found a breach of religion. This was demonstrated in the case of Ewieda v British Airways Plc , whereby the courts stated that there had been a breach of religious discrimination. This is very similar to the situation as Government are particularly concerned with religious based activists and SISIS members will feel discriminated, Article 14 of the Convention can help them.
Article 10 states everyone has the right to freedom of expression, this gives everyone the right to express their views and hold opinions without state interference . By not allowing SISIS members to express their views could be a breach of expression. As similar with previous conventional rights, this is qualified meaning the state has the power to interfere on certain conditions, however the issue is whether this is necessary in a democratic society as this is the critical question. The primary focus of limiting freedom of expression is to sustain and protect health and morals, diminish crime and disorder. In SISIS case, there is no real concern of public speaking which will cause great conflict as it is only words, although there may be certain individuals who are sensitive and can take ideas which offend and surprise, this is another legitimate aim to protect the rights of others. This was seen in the case of Handyside v UK , whereby Mr. Handyide published a book which encouraged children to have sex, watch pornography, and question authority. This of course examines the view that public speakers will express themselves in the form of words, pictures, emblems, and actions in a public protest or demonstration. Further legitimate boundaries on freedom of expression are outlined in Article10(2) and can be seen relating to public safety (Ceylan v Turkey ) and the prevention of disorder (Engel v Netherlands ).
The main subject matter is relating to Article 11 freedoms of assembly and association whereby SISIS are planning a public demonstration. It states ‘Everyone has the right to freedom of peaceful assembly and to freedom of association with others’ . This right is commonly known to link with article 10 freedom of expression, as mentioned above it is one of the foundations of a democratic society. The issue to look at is the relocation of the proposed demonstration. Chief constable has stated the demonstration will be held at least 15 miles away from Bruddersfield city Centre because it may cause serious disruption to the life of the community
The demonstration is to be held on 13th December which is really important to consider because it leads up to Christmas as well as New Years. In the case of R (Laporte) v Chief constable of Gloucestershire the chief constable had the power to minimalize the risk of public disorder under section 13 of the Public Order Act 1986 . City members could be involved in breach of peace and a high risk of a riot because of the counter demonstration from the small group. Their intentions ‘to try and disrupt the protest in the park’ explicitly state that there will be some sort of physical violence. This makes it an offense under the Public Meeting Act 1908 to disrupt a public meeting or act in a chaotic manner. Bruddersfield police need to take reasonable steps to put up a peaceful demonstration as it should not be stopped as counter demonstrations can be handled with the use of special riot units
In conclusion, Yusaf/SISIS can take their matter to the ECtHR